Mechanic's Lien Waiver Form and Advance-Waiver Rules in South Dakota

At a glance

Requirements one by one

Waiver is allowed, by this method or any other lawful one

South Dakota's waiver chapter, SDCL chapter 44-9A, starts from a permissive premise. Section 44-9A-1 says construction liens under Title 5, Title 44, or the common law "may be expressly waived as provided in this chapter in addition to all other means presently existing under law by which such liens may be waived." Two things follow. First, waiver is freely allowed — there is no statute voiding an advance or "no-lien" waiver. Second, the joint-check method the chapter describes is one option, not the only one; a waiver made by other lawful means is equally valid.

The statutory joint-check waiver has three moving parts

When parties use the chapter's method, three things must line up:

1. A joint check whose payees include both the contractor or subcontractor and the supplier furnishing the materials, supplies, equipment, or services (§ 44-9A-2).
2. A separate written agreement of waiver between the maker of the check and the supplier (§§ 44-9A-2, 44-9A-4).
3. A conspicuous provision on the back of the check referencing that separate agreement and stating that the payees, by endorsing and in consideration of the payment, "jointly and severally waive all claims" under Title 5 and Title 44 and the common law for materials and services "supplied under a clearly identified contract to the extent of and of the date of the joint check" (§ 44-9A-3).

When the supplier endorses the joint check and signs the separate agreement, that "shall constitute an express waiver of all rights and claims under Title 5 and Title 44 … and the common law … against the owner or contractor and his surety to the extent of, and as of the date of, the joint check endorsed" (§ 44-9A-4).

The waiver is measured by the check

This method never waives more than the check pays. It operates "to the extent of, and as of the date of, the joint check," so amounts not covered by the check, and work furnished after its date, remain lienable. The waiver also reaches more than the mechanic's lien: it releases Title 5 bond claims and common-law claims against the owner, the contractor, and the contractor's surety, again only to the check's extent and date.

What trips people up

A joint check alone is not a waiver, and a signed agreement alone is not a waiver. The chapter's method requires both, plus the conspicuous back-of-check language tying them together. Miss any one piece and the joint-check safe harbor does not apply — though a waiver may still be effective by "other means presently existing under law" under § 44-9A-1.

Watch the words "clearly identified contract." Section 44-9A-3 requires the waiver to point at a specific contract. A joint check that does not identify which contract it pays leaves the scope of the waiver uncertain.

Because the waiver is capped at the check's amount and date, retainage and later work are not swept in automatically. A supplier who has not been paid for everything keeps its lien for the unpaid balance, and endorsing one joint check does not surrender claims for a later payment.

Common questions

Does South Dakota have a fill-in statutory lien-waiver form? No. Chapter 44-9A describes a joint-check waiver method with functional requirements, and § 44-9A-1 preserves all other lawful means of waiver, but it prescribes no fill-in conditional/unconditional or progress/final form.

Can lien rights be waived before the work or payment? Nothing voids an advance waiver. Section 44-9A-1 allows express waiver generally, and the joint-check method is simply one way to do it.

How much does a joint-check waiver give up? Only the amount of, and claims as of the date of, the joint check (§ 44-9A-4). Unpaid amounts and later work remain lienable.

Statutes and sources

• SDCL § 44-9A-1 (liens subject to waiver; waiver allowed "in addition to all other means") — https://sdlegislature.gov/api/Statutes/44-9A-1.html (accessed 2026-07-23)
• SDCL § 44-9A-2 (joint check and separate agreement of waiver required) — https://sdlegislature.gov/api/Statutes/44-9A-2.html (accessed 2026-07-23)
• SDCL § 44-9A-3 (conspicuous provision on reverse of joint check) — https://sdlegislature.gov/api/Statutes/44-9A-3.html (accessed 2026-07-23)
• SDCL § 44-9A-4 (endorsement and separate agreement as express waiver, to the extent and date of the check) — https://sdlegislature.gov/api/Statutes/44-9A-4.html (accessed 2026-07-23)